the sentence nunc pro tunc by striking out that part of the sentence.3 36 "In cases where the statute makes hard labor a part of the punishment, it is imperative upon the court to include that in its sentence. But where the statute requires imprisonment alone, the several provisions which have just been referred to place it within the power of the court, at its discretion, to order execution of its sentence at a place where labor is exacted as part of the discipline and treatment of the institution or not, as it pleases. Thus, a wider range of punishment is given, and the courts are left at liberty to graduate their sentences so as to meet the ever varying circumstances of the cases which come before them. If the offense is flagrant, the penitentiary, with its discipline, may be called into requisition; but if slight, a corresponding punishment may be inflicted within the general range of the law." 37 In a recent case, after verdict of guilty, the court took testimony, for the purpose of information, as to the amount of the fine that should be imposed upon the corporation, which was the defendant.38 The judgment should state the crime of which the defendant is guilty and for which sentence is imposed; 39 but an omission in this respect does not make it void when these facts clearly appear upon the record.40 The time when the term of imprisonment imposed shall begin need not be therein stated.41 It seems that the signature of the judge is unnecessary to the validity of a judgment in a criminal case, when the sentence is correctly recited in the record duly authenticated by the clerk.42 36 Ex parte Harlan, 180 Fed. 119. 37 Ex parte Karstendick, 93 U. S. 396, 399, 23 L. ed. 889, 890, per Waite, C. J. 38 U. S. v. Standard Oil Co. of Indiana, 155 Fed. 305, 317, citing Bishop's New Criminal Law, I, $$ 948 and 950. The court imposed a fine of $29,240,000, which was more than the capital stock of the defendant, and which had a capital of only $1,000,000. The reason assigned was that the owner of the defendant's capital stock, the Standard Oil Company of New Jersey, whose capital was 100,000,000, was the real defendant. This case was reversed by the Circuit Court of Appeals, 104 Fed. 376. 39 Ex parte Thurston, 233 Fed. 847. 40 Ibid. 41 Bernstein v. U. S., C. C. A., 254 Fed. 966. 42 Connella v. Haskell, C. C. A., 158 Fed. 285. Terri § 533. Suspension of judgments in criminal cases. torial and District Courts of the United States have no power to suspend sentence indefinitely.2 This is an invasion of the functions of the President who alone has the right to pardon.3 A District Court has the power temporarily to suspend its judgment from time to time for the purpose of hearing motions and entertaining other proceedings after verdict which may properly be considered before judgment or for other good cause.4 When the order is for a short period of time, it will be presumed to have been granted for a sufficient reason and cannot be collaterally attacked. An indefinite order of suspension during the good behavior of the defendant which keeps the term of the court open during the time of his sentence is beyond the powers of the court. A clause in the judgment which suspends the execution of the sentence does not invalidate the sentence. It was formerly held that the court might sentence the defendant upon a single count and suspend sentence from the others.8 § 534. Punishments for Crimes against the United States. Fine,1 imprisonment 2 and death are the respective punishments imposed for crimes against the United States. "The punishment of whipping and of standing in the pillory shall not be inflicted."" 4 "No conviction or judgment shall work corruption of blood. or any forfeiture of estate. § 534a. Excessive fines, and cruel and unusual punishment. By the Eighth Amendment it is ordained: § 533. 1 Ex parte U. S., 242 U. S. 27; U. S. v. Wilson, 46 Fed. 748. 2 Ibid. 3 Ibid. 4 U. S. v. Wilson, 46 Fed. 748; Miner v. U. S., C. C. A., 244 Fed. 422; supra, § 532. 5 Miner v. U. S., C. C. A., 244 Fed. 422, an adjournment from term to term for four terms. 6 Ex parte U. S., 242 U. S. 27, 37 Sup. 72, 61 L. ed. 129. "Excessive bail 7 Morgan v. Adams, C. C. A., 226 Fed. 719. 8 U. S. v. Blaisdell, 3 Benedict 132, Fed. Cas. No. 14,608. § 534., 1 Infra, § 534e. 3 Infra, § 534b. 4 Criminal Code, § 325, 35 St. at L. 1151, Com. St., § 10499. 5 Criminal Code, § 324, 35 St. at L. 1151, Comp. St., § 10498. shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." As a general rule, a fine imposed by the court within the limits of a statute is not excessive unless the statute itself is unconstitutional. A court of review may, however, review the question whether the fine is out of proportion to the offense 2 and perhaps, when the statute does not permit immunity by taking the poor debtor's oath, to ascertain whether it has any reference to the defendant's ability to pay.3 The natural .construction of the Amendment would seem to be that the words "cruel and unusual" are used cumulatively and not alternatively; but the expressions of the courts indicate a contrary opinion. "Probably any punishment declared § 534a. 1 Pervear V. The Commonwealth, 5 Wall. 475, 480; Jackson v. U. S., C. C. A., 102 Fed. 473, 487; Cooley's Constitutional Limitations, 6th ed., p. 402. 2 Weems v. U. S., 217 U. S. 349, 54 L. ed. 793, 357, 366, a fine of four thousand pesos besides imprisonment for the offense of making a false entry in a public record as to the payment of six hundred and sixteen pesos. In State v. O'Neil, 58 Vermont 140, affirmed on another point, O'Neil v. Vermont, 144 U. S. 323, 36 L. ed. 450, a judgment was affirmed which upon a conviction of 307 legal sales of intoxicating liquor sentenced him to a fine of $6,140, being $20 for each offense and costs $497.96, and in case of failure to pay the fine to confinement at hard labor for 19,914 days, three days for each dollar of the fine and costs; besides two months imprisonment in any event. See 66 Vt. 356, March 2, 1894. In Pervear v. Commonwealth, 5 Wall. 475, 18 L. ed. 608, held not cruel and unusual punishment to impose a fine of $250 and imprison ment in a house of correction for six months, as a punishment for keeping a liquor saloon without a license. So in State v. Bergstrom, 69 Minn. 508, 520, a fine of $500 and one year's imprisonment at hard labor for the embezzlement by a county treasurer of $250. And in Whitten v. State, 47 Georgia 297, a fine of $250 and eosts, with the alternative of imprisonment for assault and battery. 3 Cooley's Constitutional Limitations, 6th ed., p. 402, citing Magna Charta. 4 See Weems v. U. S., 217 U. S. 349, 357, 366, 54 L. ed. 793 per McKenn; Ibid. per Chief White, then a puisne Justice: 402: "The term unusual, as used in the clause, was not a qualification of the provision against cruel punishments, but was simply synonymous with illegal, and was mainly intended to restrain the courts, under the guise of discretion, from indulging in an unusual and consequently illegal exertion of power." Ibid. 409, 410. "In my opinion, the review which has been made dem 1 by statute for an offense which was punishable in the same way at the common law could not be regarded as cruel or unusual in the constitutional sense." 5 A cruel punishment formerly imposed, which has become obsolete, would undoubtedly not be sustained if imposed by a modern statute such as burning alive and breaking on the wheel.6 A punishment which involves a torture or a lingering death is forbidden by the constitution.7 The punishment by death is not cruel or unusual. Nor death by shooting. Nor flogging in a State where it was cus onstrates that the word cruel, as used in the Amendment, forbids only the lawmaking power, in prescribing punishment for crime and the courts in imposing punishment from inflicting unnecessary bodily suffering through a resort to inhuman methods for causing bodily torture, like or which are the nature of the cruel methods of the bodily torture which had been made use of prior to the bill of rights of 1869, and against the recurrence of which the word cruel was used in that instrument. To illustrate. Death was a well known method of punishment prescribed by the law, and it was of course painful, and in that sense was cruel. But the infliction of this punishment was clearly not prohibited by the word cruel, although that word manifestly was intended to forbid the resort to barbarous and unnecessary methods of bodily torture, in executing even the penalty of death. "In my opinion the previous considerations also establish that the word unusual accomplished only three results: First, it primarily restrains the courts when acting under the authority of a general discretionary power to impose punishment, such as was possessed at common law, from inflicting lawful modes of punishment to so unusual a degree as to cause the punishment to be illegal because to that degree it cannot be inflicted without express statutory authority; second, it restrains the courts in the exercise of the same discretion from inflicting a mode of punishment so unusual as to be impliedly not within its discretion and to be consequently illegal in the absence of express statutory authority; and, third, as to both the foregoing it operated to restrain the lawmaking power from endowing the judiciary with the right to exert an illegal discretion as to the kind and extent of punishment to be inflicted." 5 Cooley's Constitutional Limitations, 6th ed., p. 402. 6 Wilkerson v. Utah, 99 U. S. 130, 25 L. ed. 345; Weems v. U. S., 217 U. S. 349, 379, 54 L. ed. 793, 357, 366; Done v. People, 5 Parker Cr. Cas. (N. Y.) 364, see State v. Danforth, 3 Conn. 112, 116, 122-124. 7 Re Kaemmler, 136 U. S., 436, 34 L. ed. 519. 8 Wilkerson v. Utah, 99 U. S. 130, 25 L. ed. 345; Re Kaemmler, 136 U. S. 436, 34 L. ed. 519. 9 Wilkerson v. Utah, 99 U. S. 130, 25 L. ed. 345. tomary before the Revolution.10 Nor sterilization for the of fense of rape.11 Nor a sentence of ten years in prison for assault with a dangerous weapon.12 Nor a cumulative sentence of five years upon each of two counts for a violation of the White Slave Act in connection with the same woman during the same year." 13 Nor a concurrent sentence of five years and a cumulative sentence of $1,000 on each, or $7,000 in all upon a conviction of seven counts for mailing different letters in connection with the same fraudulent scheme.14 It has been said: that the Amendment is progressive and not only forbids what was considered to be cruel and unusual when it was adopted but "may acquire meaning as public opinion becomes enlightened by a humane justice." 15 That the Amendment ordains that the Legislative shall proportion the punishment to the crime and that a penalty which is disproportionate to the offense should be set aside by the court.16 That there may be a cruelty, forbidden by the Amendment, in an excess of imprisonment imposed by statute.17 10 Claridge v. Commonwealth, 2 Va. Cases 447, Larceny by negroes; Commonwealth v. Wyatt, 6 Rand. (694 Va.); Foote v. State, 59 Md. 264, Punishment for wife-beating; Garcia v. Territory, 1 New Mexico 415, Punishment for horse stealing. Contra, Hobbs v. State (Ind.), 32 Nerep. 1019. 11 State v. Fellen (Washington, Sept., 1912), 126 Pac. 75. Contra, Mickle v. Henrichs, 262 Fed. 687. 12 Jackson v. U. S., C. C. A., 102 Fed. 473. 13 Myers v. Morgan, C. C. A., 224 Fed. 413. 14 Badders v. U. S., 240 U. S. 391, 36 Sup. Ct. 367, 60 L. ed. 706. 15 Weems v. U. S., 217 U. S. 349, 378, 54 L. ed. 793, per Justice McKenna, but see the able descent of Chief Justice White, then a puisne Justice, with whom Mr. Justice Holmes concurred. Ibid., 217 U. S. 410, 411. 16 Weems v. U. S., 217 U. S. 367, 372, 377, 379, 381, 54 L. ed. 793, per Mr. Justice McKenna, but see the same descent of White and Holmes, J. J. Ibid., 217 U. S. 387, 388, 402. 17 Weems v. U. S., 217 U. S. 349, 377, 54 L. ed. 793. Holding it to be cruel and unusual to punish by imprisonment at hard and cruel labor for twelve years in chains a public officer for making false entries in public records affecting six hundred and sixteen pesos currency; State v. Driver, 78 Nc. 432, punishing for assault and battery by imprisonment for five years in the county jail. People v. Murray,.72 Michigan 10, a dictum that a sentence of fifty years for the crime of rape was in violation of a similar clause of the State Constitution. State v. Whitaker, 48 La. Ann. 527, a dictum when a judgment was void for a similar reason because it imposed imprisonment for 2,160 days in de |